Chapter 973

973.01 Annotation Under Birchfield, 579 U.S. 438 (2016), it is impermissible to impose criminal penalties for refusing to submit to a warrantless blood draw. A lengthier jail sentence is a criminal penalty. Therefore, the circuit court in this case violated Birchfield by explicitly subjecting the defendant to a more severe criminal penalty because the defendant refused to provide a blood sample absent a warrant. State v. Dalton, 2018 WI 85, 383 Wis. 2d 147, 914 N.W.2d 120, 16-2483.

973.01 Annotation A circuit court erroneously exercises its sentencing discretion when it actually relies on clearly irrelevant or improper factors. Accordingly, a defendant challenging the defendant’s sentence must prove by clear and convincing evidence that: 1) the challenged factor is irrelevant or improper; and 2) the circuit court actually relied on that factor. Under the improper-factor prong, sentencing factors are proper when they inform valid sentencing objectives including the protection of the community, punishment of the defendant, rehabilitation of the defendant, and deterrence to others. A circuit court may properly entertain a general predisposition, based upon the court’s criminal sentencing experience, so long as that predisposition is not so specific or rigid that it ignores the particular circumstances of the individual offender. Under the actual-reliance prong, the appeals court reviews the sentencing transcript as a whole and assesses any allegedly improper comments within that context. A defendant will fall short of proving actual reliance if the transcript lacks clear and convincing evidence that the factor was the sole cause of a harsher sentence. A defendant will also fail to show actual reliance if a reference to a challenged factor bears a reasonable nexus to a relevant, proper factor. State v. Dodson, 2022 WI 5, 400 Wis. 2d 313, 969 N.W.2d 225, 18-1476.

973.01 Annotation A circuit court erroneously exercises its sentencing discretion when it actually relies on clearly irrelevant or improper factors. To prove actual reliance on an improper factor, a defendant must show that the circuit court imposed a harsher sentence solely because of the improper factor. To be the sole cause of a harsher sentence, an improper factor must stand alone as an independent factor. If a circuit court’s reference to a challenged factor bears a reasonable nexus to a proper sentencing factor, then the circuit court has not imposed sentence based “solely” on the improper factor. State v. Whitaker, 2022 WI 54, 402 Wis. 2d 735, 976 N.W.2d 304, 20-0029.

973.01 Annotation Wisconsin law empowers circuit courts to impose conditions of extended supervision and probation and to modify those conditions through a formal statutory process. However, actual administration of the sentence and conditions is entrusted to the Department of Corrections. In this case, the circuit court likely stepped over the line when the court imposed a condition that the defendant could not live with any women or unrelated children without the permission of the court, and the court intended to administer that condition through case-by-case oversight. State v. Williams-Holmes, 2023 WI 49, 408 Wis. 2d 1, 991 N.W.2d 373, 21-0809.

973.01 Annotation The use of the word “or” in sub. (2) (c) 2. c. contrasts with the use of the word “and” in sub. (2) (c) 2. a. The use of the word “or” indicates that only one of the penalty enhancers found in ss. 939.62 (1) and 961.48 can apply, but not both. State v. Hailes, 2023 WI App 29, 408 Wis. 2d 465, 992 N.W.2d 835, 21-1339.

973.01 Annotation Truth-In-Sentencing Comes to Wisconsin. Brennan & Latorraca. Wis. Law. May 2000.

973.01 Annotation Fully Implementing Truth-in-Sentencing. Brennan, Hammer, & Latorraca. Wis. Law. Nov. 2002.

973.013 973.013 Indeterminate sentence; Wisconsin state prisons.

973.013(1) (1) 

973.013(1)(a) (a) If imprisonment in the Wisconsin state prisons for a term of years is imposed, the court may fix a term less than the prescribed maximum. The form of such sentence shall be substantially as follows: “You are hereby sentenced to the Wisconsin state prisons for an indeterminate term of not more than .... (the maximum as fixed by the court) years.”

973.013(1)(b) (b) Except as provided in s. 973.01, the sentence shall have the effect of a sentence at hard labor for the maximum term fixed by the court, subject to the power of actual release from confinement by parole by the department or by pardon as provided by law. If a person is sentenced for a definite time for an offense for which the person may be sentenced under this section, the person is in legal effect sentenced as required by this section, said definite time being the maximum period. A defendant convicted of a crime for which the minimum penalty is life shall be sentenced for life.

973.013(2) (2) Upon the recommendation of the department, the governor may, without the procedure required by ch. 304, discharge absolutely, or upon such conditions and restrictions and under such limitation as the governor thinks proper, any inmate committed to the Wisconsin state prisons after he or she has served the minimum term of punishment prescribed by law for the offense for which he or she was sentenced, except that if the term was life imprisonment, 5 years must elapse after release on parole or extended supervision before such a recommendation can be made to the governor. The discharge has the effect of an absolute or conditional pardon, respectively.

973.013(3) (3) Female persons convicted of a felony may be committed to the Taycheedah Correctional Institution unless they are subject to sub. (3m).

973.013(3m) (3m) If a person who has not attained the age of 18 years is sentenced to the Wisconsin state prisons, the department shall place the person at a juvenile correctional facility or a secured residential care center for children and youth, unless the department determines that placement in an institution under s. 302.01 is appropriate based on the person’s prior record of adjustment in a correctional setting, if any; the person’s present and potential vocational and educational needs, interests and abilities; the adequacy and suitability of available facilities; the services and procedures available for treatment of the person within the various institutions; the protection of the public; and any other considerations promulgated by the department by rule. The department may not place any person under the age of 18 years in the correctional institution authorized in s. 301.16 (1n). This subsection does not preclude the department from designating an adult correctional institution, other than the correctional institution authorized in s. 301.16 (1n), as a reception center for the person and subsequently transferring the person to a juvenile correctional facility or a secured residential care center for children and youth. Section 302.11 and ch. 304 apply to all persons placed in a juvenile correctional facility or a secured residential care center for children and youth under this subsection.

973.013(4) (4) If information under s. 972.15 (2m) has been provided in a presentence investigation report, the court shall consider that information when sentencing the defendant.

973.013 History History: 1973 c. 90; 1975 c. 189 s. 99 (1); 1975 c. 224 s. 146m; 1983 a. 102, 1983 a. 371 s. 13; Stats. 1983 s. 973.013; 1987 a. 27; 1989 a. 31, 107; 1993 a. 486; 1995 a. 27; 1997 a. 283; 2001 a. 16, 103; 2005 a. 344; 2017 a. 59.

973.013 Annotation The sentencing judge shall state for the record, in the presence of the defendant, the reasons for selecting the particular sentence imposed or, if the sentencing judge considers it in the interest of the defendant not to state reasons in the presence of the defendant, shall prepare a statement for transmission to the reviewing court as part of the record. McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971).

973.013 Annotation It was not a denial of equal protection to sentence a defendant to four years’ imprisonment, although other persons involved, all minors, received lesser or no punishment. State v. Schilz, 50 Wis. 2d 395, 184 N.W.2d 134 (1971).

973.013 Annotation An abuse of discretion, as it relates to sentencing procedures, will be found only if there is no rational basis for the imposition of the sentence or the rationale is not articulated in, or inferable from, the record, or if discretion is exercised on the basis of clearly irrelevant or improper factors. Davis v. State, 52 Wis. 2d 697, 190 N.W.2d 890 (1971).

973.013 Annotation The seriousness of the offense is a proper criterion for imposing a maximum sentence. While warehousing dangerous individuals is not the sole purpose for imposing long prison terms, it is a legitimate factor for a trial court to consider. Bastian v. State, 54 Wis. 2d 240, 194 N.W.2d 687 (1972).

973.013 Annotation A prison sentence is reduced to reflect days of pretrial incarceration during which the defendant is unable to raise bail because of indigency. Wilkins v. State, 66 Wis. 2d 628, 225 N.W.2d 492 (1975).

973.013 Annotation A defendant’s change in attitude or rehabilitative progress subsequent to sentencing is a factor to be considered in determining parole but is not a proper consideration upon which a trial court might base a reduction of sentence. State v. Wuensch, 69 Wis. 2d 467, 230 N.W.2d 665 (1975).

973.013 Annotation Although evidence concerning incidents of sexual activity abroad was relevant as to the defendant’s character and admissible at the sentencing hearing, the trial court abused its discretion by punishing the defendant not only for the crime of which the defendant stood convicted, but for the events that occurred outside Wisconsin, as indicated by the fact that both sentencing hearings were devoted largely to these foreign incidents. Rosado v. State, 70 Wis. 2d 280, 234 N.W.2d 69 (1975).

973.013 Annotation The trial court exceeded its jurisdiction by specifying conditions of incarceration. State v. Gibbons, 71 Wis. 2d 94, 237 N.W.2d 33 (1976).

973.013 Annotation A plea bargain agreement by law enforcement officials not to reveal relevant and pertinent information to the sentencing judge was unenforceable as being against public policy. Grant v. State, 73 Wis. 2d 441, 243 N.W.2d 186 (1976).

973.013 Annotation Chronic offenses of theft by fraud by promising to marry several persons provided a rational basis for a lengthy sentence. Lambert v. State, 73 Wis. 2d 590, 243 N.W.2d 524 (1976).

973.013 Annotation A sentencing judge does not deny due process by considering pending criminal charges in determining a sentence. Discussing the scope of judicial inquiry prior to sentencing. Handel v. State, 74 Wis. 2d 699, 247 N.W.2d 711 (1976).

973.013 Annotation A defendant’s refusal to name accomplices was properly considered by the sentencing judge. Because the defendant had pleaded guilty to the crime, self-incrimination would not have resulted from the requested cooperation. Holmes v. State, 76 Wis. 2d 259, 251 N.W.2d 56 (1977).

973.013 Annotation Courts may correct formal or clerical errors or an illegal sentence at any time. Krueger v. State, 86 Wis. 2d 435, 272 N.W.2d 847 (1979).

973.013 Annotation The double jeopardy clause did not bar prosecution of a charge after it was considered as evidence of character in sentencing the defendant on a prior unrelated conviction. State v. Jackson, 110 Wis. 2d 548, 329 N.W.2d 182 (1983).

973.013 Annotation Increasing a sentence following the vacation of a bargained for no contest plea did not violate due process. Discussing the test for judicial vindictiveness. State v. Stubbendick, 110 Wis. 2d 693, 329 N.W.2d 399 (1983).

973.013 Annotation An 80-year sentence for a first-time sexual offender was not an abuse of discretion. State v. Curbello-Rodriguez, 119 Wis. 2d 414, 351 N.W.2d 758 (Ct. App. 1984).

973.013 Annotation An unambiguous sentence pronounced orally and recorded in the sentencing transcript controls over the written judgment of conviction. State v. Perry, 136 Wis. 2d 92, 401 N.W.2d 748 (1987).

973.013 Annotation The sentencing court does not abuse its discretion by considering a victim’s statements and recommendations. State v. Johnson, 158 Wis. 2d 458, 463 N.W.2d 352 (Ct. App. 1990).

973.013 Annotation The primary factors to be considered in exercising discretion in sentencing are: 1) the gravity of the offense; 2) the rehabilitative needs of the defendant; and 3) the protection of the public. State v. Paske, 163 Wis. 2d 52, 471 N.W.2d 55 (1991).

973.013 Annotation Due process does not require the presence of counsel at a presentence investigation interview of the defendant. State v. Perez, 170 Wis. 2d 130, 487 N.W.2d 630 (Ct. App. 1992).

973.013 Annotation Whether a particular factor will be considered as a mitigating or aggravating factor will depend on the particular defendant and case. State v. Thompson, 172 Wis. 2d 257, 493 N.W.2d 729 (Ct. App. 1992).

973.013 Annotation The trial court’s possible consideration at sentencing of the defendant’s culpability in a more serious offense, although the jury convicted on a lesser included offense, was not error. State v. Marhal, 172 Wis. 2d 491, 493 N.W.2d 758 (Ct. App. 1992). See also State v. Bobbitt, 178 Wis. 2d 11, 503 N.W.2d 11 (Ct. App. 1993).

973.013 Annotation No specific burden of proof is imposed as to read-in offenses that bear upon sentencing; all sentencing is under the standard for judicial discretion. State v. Hubert, 181 Wis. 2d 333, 510 N.W.2d 799 (Ct. App. 1993).

973.013 Annotation A sentencing court may consider a defendant’s religious beliefs and practices only if a reliable nexus exists between the defendant’s criminal conduct and those beliefs and practices. State v. Fuerst, 181 Wis. 2d 903, 512 N.W.2d 243 (Ct. App. 1994).

973.013 Annotation If an oral pronouncement is ambiguous, it is proper to look to the written judgment to ascertain a court’s intent in sentencing. An omission in the oral pronouncement can create an ambiguity. State v. Lipke, 186 Wis. 2d 358, 521 N.W.2d 444 (Ct. App. 1994).

973.013 Annotation Under this section [now sub. (1)], life imprisonment without parole is not an option. State v. Setagord, 187 Wis. 2d 340, 523 N.W.2d 124 (Ct. App. 1994).

973.013 Annotation A trial court in exercising sentencing discretion is not prohibited from entertaining general predispositions based on experience, but the judge’s predispositions may never be so specific as to ignore the particular circumstances of the individual offender. State v. Ogden, 199 Wis. 2d 566, 544 N.W.2d 574 (1996), 94-1485.

973.013 Annotation A defendant who requests resentencing must show that specific information was inaccurate and that the court relied on it. When facts stated in a presentence report are not challenged at sentencing, the sentencing judge may appropriately consider them. State v. Mosley, 201 Wis. 2d 36, 547 N.W.2d 806 (Ct. App. 1996), 95-1340.

973.013 Annotation A court must consider three primary factors in exercising discretion in sentencing: 1) the gravity of the offense; 2) the character of the offender; and 3) the need to protect the public. Remorse is an additional factor that may be considered. State v. Rodgers, 203 Wis. 2d 83, 552 N.W.2d 123 (Ct. App. 1996), 95-2570. See also State v. Barnes, 203 Wis. 2d 132, 552 N.W.2d 857 (Ct. App. 1996), 95-1831.

973.013 Annotation A defendant is automatically prejudiced when the prosecutor materially and substantially breaches a plea agreement. New sentencing is required. State v. Smith, 207 Wis. 2d 258, 558 N.W.2d 379 (1997), 94-3364. But see State v. Nietzold, 2023 WI 22, 406 Wis. 2d 349, 986 N.W.2d 795, 21-0021.

973.013 Annotation When resentencing a defendant, a court should consider all information relevant about the defendant, including information not existing or not known when sentence was first passed. State v. Carter, 208 Wis. 2d 142, 560 N.W.2d 256 (1997), 94-2001.

973.013 Annotation A marital relationship between a case’s prosecutor and the presentence report writer was sufficient to draw the objectivity of the report into question. It was error not to strike the report. State v. Suchocki, 208 Wis. 2d 509, 561 N.W.2d 332 (Ct. App. 1997), 96-1712.

973.013 Annotation Evidence of unproven offenses involving the defendant may be considered in sentencing decisions, as the court must consider whether the crime is an isolated act or part of a pattern of conduct. State v. Fisher, 211 Wis. 2d 665, 565 N.W.2d 565 (Ct. App. 1997), 96-1764.

973.013 Annotation A defendant’s argument that the defendant’s sentence was excessive in relation to other sentences for similar crimes committed in the same county was without merit. There is no requirement that persons convicted of similar offenses must receive similar sentences. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998), 96-2830.

973.013 Annotation That a conviction followed an Alford, 400 U.S. 25 (1970), plea did not prevent requiring the defendant, as a condition, to complete a treatment program that required acknowledging responsibility for the crime that resulted in the conviction. The imposition of the condition did not violate the defendant’s due process rights. There is nothing inherent in an Alford plea that gives a defendant any rights as to punishment. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 579 N.W.2d 698 (1998), 96-2441.

973.013 Annotation When a victim’s criminal record supports a defendant’s version of a crime, the gravity of which crime is a sentencing factor, the criminal record should be admitted as evidence at the defendant’s sentencing hearing. State v. Spears, 227 Wis. 2d 495, 596 N.W.2d 375 (1999), 97-0536.

973.013 Annotation Proper sentencing discretion can exist without delineation of sentencing factors; what is required is consideration of the sentencing factors. When the same judge presides at sentencing after probation revocation and the original sentencing, the judge does not have to restate the reasons supporting the original sentencing, which is implicitly adopted. State v. Wegner, 2000 WI App 231, 239 Wis. 2d 96, 619 N.W.2d 289, 99-3079.

973.013 Annotation It is entirely reasonable that a competency examination designed to address a defendant’s ability to understand the proceedings and assist counsel may also address issues of future dangerousness, which a court may reasonably consider when gauging the need for public protection in setting a sentence. State v. Slagoski, 2001 WI App 112, 244 Wis. 2d 49, 629 N.W.2d 50, 00-1586.

973.013 Annotation Spears, 227 Wis. 2d 495 (1999), does not stand for the proposition that a defendant may, at sentencing, present any and all evidence that the defendant wishes to present. State v. Robinson, 2001 WI App 127, 246 Wis. 2d 180, 629 N.W.2d 810, 00-1170.

973.013 Annotation The exercise of sentencing discretion requires the court to exercise its discretion to create a sentence within the range provided by the legislature that reflects the circumstances of the situation and the particular characteristics of the offender. The court must consider the gravity of the offense, the offender’s character, and the public’s need for protection. The weight given to any factor is left to the trial court’s discretion. State v. Steele, 2001 WI App 160, 246 Wis. 2d 744, 632 N.W.2d 112, 00-2864.

973.013 Annotation In sentencing after probation revocation, if the judge did not preside at the original sentencing, the judge must be able to rely upon the entire record, including comments at the first sentencing. When the record at the second sentencing reflected no recognition by the second judge of trial testimony, the presentence investigation report, or the trial judge’s comments on the severity of the offense, the sentence could not stand. State v. Reynolds, 2002 WI App 15, 249 Wis. 2d 798, 643 N.W.2d 165, 01-0498.

973.013 Annotation A court’s correction of an invalid sentence by increasing the punishment does not constitute double jeopardy; the initial sentence being invalid, the second sentence is the only valid sentence imposed. An increased sentence is permissible at resentencing only when it is based upon a desire to implement the original dispositional scheme from the first sentencing and when the initial conviction and sentence are invalid, the resentencing court has no new information or newly known information, and the resentencing court seeks to impose a greater sentence. State v. Helm, 2002 WI App 154, 256 Wis. 2d 285, 647 N.W.2d 405, 01-2398.

973.013 Annotation In fixing a sentence within statutory limits, the judge may consider the defendant’s false testimony observed by the judge during trial. United States v. Grayson, 438 U.S. 41, 98 S. Ct. 2610, 57 L. Ed. 2d 582 (1978).

973.013 Annotation The Lodestar of Personal Responsibility. Brennan. 88 MLR 365 (2004).

973.013 Annotation Constitutional Law—Eighth Amendment—Appellate Sentence Review. Graupner. 1976 WLR 655.

973.0135 973.0135 Sentence for certain serious felonies; parole eligibility determination.

973.0135(1) (1) In this section:

973.0135(1)(a) (a) “Prior offender” means a person who meets all of the following conditions:

973.0135(1)(a)1. 1. The person has been convicted of a serious felony on at least one separate occasion at any time preceding the serious felony for which he or she is being sentenced.

973.0135(1)(a)2. 2. The person’s conviction under subd. 1. remains of record and unreversed.

973.0135(1)(a)3. 3. As a result of the conviction under subd. 1., the person was sentenced to more than one year of imprisonment.

973.0135(1)(b) (b) “Serious felony” means any of the following:

973.0135(1)(b)1. 1. Any felony under s. 961.41 (1), (1m) or (1x) if the felony is punishable by a maximum prison term of 30 years or more.

973.0135(1)(b)2. 2. Any felony under s. 940.09 (1), 1999 stats., s. 943.23 (1m) or (1r), 1999 stats., s. 948.35 (1) (b) or (c), 1999 stats., s. 948.36, 1999 stats., or s. 943.23 (1g), 2021 stats., or s. 940.01, 940.02, 940.03, 940.05, 940.09 (1c), 940.16, 940.19 (5), 940.195 (5), 940.198 (2) (a) or (c), 940.21, 940.225 (1) or (2), 940.305, 940.31, 941.327 (2) (b) 4., 943.02, 943.10 (2), 943.231 (1), 943.32 (2), 946.43 (1m), 948.02 (1) or (2), 948.025, 948.03 (2) (a) or (c) or (5) (a) 1., 2., 3., or 4., 948.05, 948.051, 948.06, 948.07, 948.075, 948.08, or 948.30 (2).

973.0135(1)(b)3. 3. The solicitation, conspiracy or attempt, under s. 939.30, 939.31 or 939.32, to commit a Class A felony.

973.0135(1)(b)4. 4. A crime at any time under federal law or the law of any other state or, prior to April 21, 1994, under the law of this state that is comparable to a crime specified in subd. 1., 2. or 3.

973.0135(2) (2) Except as provided in sub. (3), when a court sentences a prior offender to imprisonment in a state prison for a serious felony committed on or after April 21, 1994, but before December 31, 1999, the court shall make a parole eligibility determination regarding the person and choose one of the following options:

973.0135(2)(a) (a) The person is eligible for parole under s. 304.06 (1).

973.0135(2)(b) (b) The person is eligible for parole on a date set by the court. Under this paragraph, the court may not set a date that occurs before the earliest possible parole eligibility date as calculated under s. 304.06 (1) and may not set a date that occurs later than two-thirds of the sentence imposed for the felony.

973.0135(3) (3) A person is not subject to this section if the current serious felony is punishable by life imprisonment.

973.0135(4) (4) If a prior conviction is being considered as being covered under sub. (1) (b) 4. as comparable to a felony specified under sub. (1) (b) 1., 2. or 3., the conviction may be counted as a prior conviction under sub. (1) (a) only if the court determines, beyond a reasonable doubt, that the violation relating to that conviction would constitute a felony specified under sub. (1) (b) 1., 2. or 3. if committed by an adult in this state.

973.0135 History History: 1993 a. 194, 483; 1995 a. 448; 1997 a. 219, 283, 295; 1999 a. 32, 188; 2001 a. 109; 2007 a. 116; 2015 a. 366; 2021 a. 76; 2021 a. 240 s. 30; 2023 a. 10.

973.014 973.014 Sentence of life imprisonment; parole eligibility determination; extended supervision eligibility determination.

973.014(1) (1) Except as provided in sub. (2), when a court sentences a person to life imprisonment for a crime committed on or after July 1, 1988, but before December 31, 1999, the court shall make a parole eligibility determination regarding the person and choose one of the following options:

973.014(1)(a) (a) The person is eligible for parole under s. 304.06 (1).

973.014(1)(b) (b) The person is eligible for parole on a date set by the court. Under this paragraph, the court may set any later date than that provided in s. 304.06 (1), but may not set a date that occurs before the earliest possible parole eligibility date as calculated under s. 304.06 (1).

973.014(1)(c) (c) The person is not eligible for parole. This paragraph applies only if the court sentences a person for a crime committed on or after August 31, 1995, but before December 31, 1999.

973.014(1g) (1g) 

973.014(1g)(a) (a) Except as provided in sub. (2), when a court sentences a person to life imprisonment for a crime committed on or after December 31, 1999, the court shall make an extended supervision eligibility date determination regarding the person and choose one of the following options:

973.014(1g)(a)1. 1. The person is eligible for release to extended supervision after serving 20 years.

973.014(1g)(a)2. 2. The person is eligible for release to extended supervision on a date set by the court. Under this subdivision, the court may set any later date than that provided in subd. 1., but may not set a date that occurs before the earliest possible date under subd. 1.

973.014(1g)(a)3. 3. The person is not eligible for release to extended supervision.

973.014(1g)(b) (b) When sentencing a person to life imprisonment under par. (a), the court shall inform the person of the provisions of s. 302.114 (3) and the procedure for petitioning under s. 302.114 (5) for release to extended supervision.